While seemingly preoccupied this week with criminal justice reform and avoiding a government shutdown, Congress also authorized a national strategy for arresting sex buyers and approved the use of secret wiretaps in misdemeanor prostitution cases.
The national plan to "end demand" for prostitution was part of the massive "Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act," which cleared the Senate Monday through a secret vote of the sort civil libertarians have long opposed.
Congress is now "strengthening federal efforts" to be tough on sex buyers, based on the false idea that customers of consenting adult sex workers drive demand for minors. All state and local cops, prosecutors, and judges are to be trained on "best practices for prosecuting buyers" of sex and how to use asset forfeiture in these cases. A federal working group on the study of sex-buyer arrests will also be created, and grants related to human trafficking must include language encouraging those working on demand-reduction efforts to apply.
In addition, Congress "clarif[ies] that commercial sexual exploitation is a form of gender-based violence," whatever that means.
"Any comprehensive approach to eliminating sex and labor trafficking must include a demand reduction component," states the bill, which passed the Senate Tuesday after clearing the House in July 2017.
The House also passed the bill via "voice vote," a process under which there's neither a record of how members voted, whether they were present for a vote, nor how many total members actually voted. Voice votes—also known as unanimous consent agreements—can be contested by a member demanding a regular vote. This week, Rep. Thomas Massie (R-Ky.) has been demanding recorded votes on a slew of measures in the House.
Meanwhile, in the Senate, Majority Leader Mitch McConnell (R–Ky.) was using the process to usher through four bills at the intersection of law enforcement, human rights, bureaucracy building, and foreign diplomacy. In addition to the Frederick Douglass Act (H.R. 2200, with no separate Senate version), the following bills also passed the Senate by unanimous consent on Monday:
- The Abolish Human Trafficking Act (S. 1311)
- The Trafficking Victims Protection Act of 2017 (S. 1312)
- The Trafficking Victims Protection Reauthorization Act (S. 1862)
The chambers are now resolving differences on all three before sending them to President Donald Trump for signing. The total package includes a mixed bag of policies and funding priorities.
Big Changes, Fine Print
Tucked in some tiny sections are significant changes, some that go way beyond human trafficking. For instance, a section of S. 1311 would allow state law enforcement to use secret wiretaps on sex workers and their customers.
A part of S.1312 "amends the federal criminal code to broaden the authority of the U.S. Secret Service to provide forensic and investigative assistance to state and local law enforcement agencies by allowing assistance in support of any investigation—not just an investigation involving missing or exploited children." [Emphasis mine]
Another "amends the federal criminal code to authorize the Department of Justice (DOJ) to bring a civil action to stop or prevent criminal offenses related to suspected forced labor, sex trafficking, or sexual abuse." This would give the DOJ more leeway to preemptively shut down businesses while building a criminal case.
One provision essentially creates a new federal crime initiative by directing resources and money to fight "sextortion." Among other (expanded) missions, the National Center for Missing and Exploited Children will now teach school kids, cops, and staff about the dangers of "sexting and sextortion," too.
The measures include grant money for new programs aimed at school resource officers, teachers, and students that purportedly teach the signs of sex trafficking.
And they set aside more money for Customs and Border Protection "to expand outreach and live on-site anti-trafficking training for airport and airline personnel"—efforts that have thus far yielded a host of high-profile stories about profiling interracial families and not a single confirmed story involving actual sex traffickers.
Small Glimmers of Sanity
On average, however, there's actually less sex-trafficking panic in these bills than similar measures we've been seeing this century, with way fewer references to inflated and debunked statistics. The End Demand element notwithstanding, there's also less conflation of sex work that adults freely engage in and forced prostitution of adults or minors.
Congress instructs the Justice Department to develop better training with regard to "limiting arrests or prosecutions of trafficking victims for crimes they commit as a direct result" of being victimized, and to award grants to groups that prioritize this approach.
Senators also rejected the part of a House-approved measure that required traveling federal employees to stay at hotels "with certain policies relating to child sexual exploitation."
In addition, a host of transparency-related provisions are potentially good.
For nearly two decades, the feds have been leading and supporting anti-human-trafficking efforts with little accounting for the money and time spent or the results. Now, Congress is instructing DOJ to report on the methodology it uses "to assess the prevalence of human trafficking." In addition, federal crime reports are instructed to start measuring instances of child-labor violations, assisting or promoting prostitution arrests, and solicitation for commercial sex arrests.
Congress tells the FBI to "publish a status report on the Innocence Lost National Initiative," a nationwide effort, coordinated with local police, that has operated largely in secret for more than a decade. It's the initiative behind the FBI's annual Operation Cross Country, which I have written about in detail. The data Congress requested is information my former colleague Lauren Krisai and I have sought to get from the FBI, with no luck.
Congress also tells the government-funded-but-FOIA-exempt National Center for Missing and Exploited Children "to make publicly available the annual report on missing children and the incidence of attempted child abductions."
And it asks for more accountability from Homeland Security Investigations (HSI) about trafficking-related investigations. HSI is involved in all sorts of prostitution stings around America, especially ones involving Asian massage parlors.
A large part of the legislation is concerned with the State Department's annual Trafficking in Persons report, which places countries into one of three tiers based on how well we think they're doing to counter sex and labor trafficking. Bad rankings on this list can affect a country's business dealings, reputation, and eligibility for various U.S. programs. Historically, the TIP report has been used as a political tool and is ripe for abuse. In the new legislation, Congress offers more guidelines for placing countries in which tier, how they're moved between them, and what counts as "credible information" for purposes of determining their rank.
Overall, there's a lot of overlapping instruction and redundancy in the four bills approved in the Senate Monday. Perhaps they could have benefited from full attention by the legislature instead of McConnell rushing them through under secret votes right before a holiday break.
But the fact that he was able to do that underscores something interesting. For at least a decade, lawmakers have made a big deal about introducing, supporting, and passing bills related to sex trafficking. Interestingly, there was little fanfare from folks in Congress about the passage of these measures. It seems that when these efforts aren't full of sex panic and high-profile targets like Backpage, there's little glory in claiming credit for them.
Start your day with Reason. Get a daily brief of the most important stories and trends every weekday morning when you subscribe to Reason Roundup.